More thoughts on death and digital media

Imran made an interesting comment on my Digital Will post about an American GI, Justin Ellsworth, killed in Iraq whose family was attempting to gain access to his Yahoo e-mail account.

A court has just ruled that Yahoo should hand over the password details to give the family access.

There has been a lot of blogging and forum posting on this decision - most that seem to have missed the fact that the email account was apparently being used as a journal - about the rights and wrongs of this. Most opinion seems to be that email is private and as such the next-of-kin has no rights over it.

I tend towards suggesting that awarding access to next of kin to things like flickr accounts makes sense - email however is a tricky one. If the case was won in this specific instance because the contents of the account were actually journal entries that Ellsworth had displayed every intention of sharing with his family then the ruling seems fair, but I can see the worries of those concerned about precedent.

Private letters discovered after death have of course always be accessible to the next of kin and historians have long used them as a valuable source for informing understanding of events and the motivations of those involved. Alas it would seem that as correspondence moves to a more digital or virtual medium that these sources could well be lost if indeed emails die with the author.

Perhaps it is the perception of what email is and thus how it is used that leads to concerns. As a rule people are prone to more flippancy and candor in an email which somehow seems less 'official' than putting pen to paper. Email is a lot more instant, leading to people often sending off a rant filled missive as unconsidered reaction, where as the process of generating hard copy would allow the heat of the moment to dissipate. Email therefore could even be argued to be more honest and perhaps it is the fear of this honesty being exposed that also fuels concern over posthumous readings.

Whatever the rights and wrongs of the specific topic of accessing private email, it still seems sensible that a clause in a will stating the wishes of the deceased for access to their digital content should be grounds for a provider to either allow or deny access accordingly. There needs to be a legal framework in place for compelling providers to act in accordance to the wishes of their late customers. Though of course this will only be workable if wills routinely address these issues.
In the wake of the Terry Schaivo legal mess, perhaps this should also apply to living wills.

People has suggested things like always sharing passwords with their next of kin, or writing them down in a 'open upon my death' type envelope, but surely as digital mediums continue to advance their underpinning of our lives, a more elegant solution needs to be considered. If not, we will continue to see more court time be taken up on case after very similar case, I'm sure there are more useful things that our legal systems could be doing.

I still assert that all of this could of course be much simpler if, as I suggested in my Digital Will post that access instructions were built into standard account registration or federated identity.

I suspect that we are currently viewing less than the tip of the iceberg on this issue. However, if it is to be addressed, industry thinkers, sociologists and legislators will need to start factoring these next of kin issues into their thinking about the implications of a society with ever more digital ‘possessions’ very soon indeed.